CADDNAR
Antrup v. Liston & Piering (21-049W), 16 CADDNAR 22
Administrative Cause Number: 21-049W
Administrative Law Judge: Aaron Bonar
Petitioner Counsel: Jason M. Kuchmay
Respondent Counsel: William Gooden & Michael Maxwell
Date: September 15, 2023
[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER
Procedural Background and Jurisdiction
1. On September 30, 2021, Christen and Molly Antrup (hereinafter Petitioners) filed correspondence (hereinafter Petition) with the Natural Resources Commission (hereinafter Commission) alleging that Carol Liston, Aaron Piering, and Rachel Piering (hereinafter Respondents), placed a pier on an deeded easement that did not comply with a pier permit previously granted to Respondents by the Indiana Department of Natural Resources (Department) or with the Commission’s Information Bulletin #56. See Petition.
2. Petitioners seek to have the Respondents’ pier removed “as presently configured” and for the Commission to issue an order that Respondents must comply with their written permit and/or that Respondents must obtain a new written permit to modify Respondents’ pier. Id.
3. By filing their Petition, Petitioners initiated a proceeding governed by Indiana Code 4-21.5-3, sometimes referred to as the Administrative Orders and Procedures Act (AOPA) and the administrative rules adopted by the Commission at 312 IAC 3-1 to assist with the implementation of AOPA. See IC 4-21.5-3-1, et seq.
4. Administrative Law Judge (ALJ) Dawn Wilson was appointed under IC 14-10-2-2 to conduct this proceeding and was assigned this case on or around October 4, 2021.
5. A telephonic prehearing conference was set for October 21, 2021. Following notice to the parties, it was discovered that the address provided by Petitioners for Respondents was not valid. Petitioners were ordered to file an Amended Petition that included a new address for Respondents no later than November 2, 2021.
6. Petitioners filed their amended petition on November 1, 2021. A new prehearing conference was set for November 23, 2021, but was continued by the ALJ to December 15, 2021 to allow for additional time to serve Respondents.
7. At the December 15, 2021 telephonic prehearing conference, the parties stated that they were involved in a pending case in the Steuben County Circuit Court that could involve an adjudication of some riparian issues. Neither party requested a hearing date be set or a case management order be entered at that time. The order from the conference stated that ALJ Wilson would be retiring from the Division of Hearings in December 2021, and that a new ALJ would be assigned to the case.
8. On May 16, 2022, Respondents filed their Request for Assignment of Administrative Law Judge and for the Scheduling of a Status Conference as a new ALJ had not been assigned to the case after ALJ Wilson’s retirement. Chief ALJ Elizabeth Gamboa was assigned to the case and issued an order on May 19, 2022 setting a telephonic status conference for June 7, 2022.
9. ALJ Aaron Bonar was assigned to this case on June 2, 2022 and conducted the status conference on June 7, 2022, during which the parties agreed to schedule an administrative hearing for January 17 and 18, 2023.
10. On October 11, 2022, ALJ Bonar issued an order vacating the administrative hearing date due to a conflict. A telephonic status conference was set for November 7, 2022.
11. At the November 7, 2022 telephonic conference, the parties agreed to set an administrative hearing on April 12 and 13, 2023. The deadline to file dispositive motions was set for February 1, 2023.
12. On February 1, 2023, Petitioners filed a request to extend the deadline for filing dispositive motions to February 11, 2023. Respondents did not oppose the request. An order granting the extension was issued on February 2, 2023.
13. On February 13, 2023, both parties filed their respective Motions for Summary Judgment and briefs in support of said motions. Both motions were denied by ALJ Bonar.
14. At a telephonic conference on April 13, 2023, the parties agreed to hold a half-day hearing on April 21, 2023 due to a witness’s unavailability on April 12 and 13, 2023.
15. An administrative hearing took place on April 21, 2023. At the hearing, Petitioners, Counsel for Petitioners Jason Kuchmay, Respondents, and Counsel for Respondents William Gooden and Michael Maxwell appeared in person at the Commission Hearing Room at the Indiana Government Center in Indianapolis, Indiana.
16. The following witnesses provided testimony at the administrative hearing: Christen Antrup, Molly Antrup, Carol Liston, and Aaron Piering.
17. Respondents stipulated to Petitioner’s Exhibits A-J.
18. Petitioners stipulated to Respondents’ Exhibits 1-3 and 7-12.[1] Respondents’ Exhibit 4 was admitted into the record without objection. Exhibits 5 and 6 were not offered for admission into the record.
19. The State of Indiana, through the Department, has been vested by the Indiana Legislature with full power over public freshwater lakes in the state through the Lake Preservation Act. IC § 14-26-2-5(d).
20. The Commission has adopted rules found at 312 IAC 11-3 to assist with the administration of the Lake Preservation Act. IC § 4-21.5-1-15 and 312 IAC 3-1-2.
21. The Commission is the ultimate authority of the Department. IC § 14-10-2-3.
22. The Commission has jurisdiction over the subject matter and the persons in this dispute.
Findings of Fact
23. Petitioners own real estate in Freemont, Steuben County, Indiana commonly identified as 80 Lane 140B Lake George. The property is lakefront property with a total shoreline of approximately 54-55 feet, reduced to approximately 44 usable feet by an easement as described in paragraph 25 below. See testimony of Chris Antrup and Exhibit A.
24. Respondents own real estate in Freemont, Steuben County, Indiana commonly identified as 215 Lane 140 Lake George. The property is not lakefront property. See testimony of Carol Liston and Exhibit 2.
25. Petitioners’ property is burdened by an easement that spans ten feet of shoreline and grants Respondents access to Lake George. Previous litigation found that the easement grants Respondents riparian rights, and this finding is undisputed.[2] See testimony of Christen Antrup and Carol Liston, Exhibits C and D, and Exhibits 2 and 3.
26. Petitioners maintain a pier on Lake George. Petitioners’ pier is approximately four-feet (4) feet wide, except for an eight-foot wide by ten-foot long (8x10 feet) section at the lakeward end of the pier. The pier is approximately 90 feet long in total. See testimony of Christen Antrup.
27. After Respondents’ riparian rights were established, Respondents desired to extend a pier from the easement. Respondents had previously maintained a pier in the area, but the previous owners of Petitioners’ property kept removing Respondents’ pier. See testimony of Carol Liston.
28. Respondent Liston obtained a permit from the Department in 2012 to maintain a three-foot (3) wide, twenty-foot (20) long removable pier “in front of and perpendicular to [the] 10’ easement.” See Exhibit E.
29. Respondent Liston sought the permit as she felt it would be “good to have a permit on file” to deter other parties from removing Respondents’ pier from the lake. Petitioners did not have any concerns regarding the permitted pier and did not object to its placement. See testimony of Christen Antrup, Molly Antrup, and Carol Liston.
30. Respondents’ pier remained in place from 2012 to 2021,[3] when Respondents expanded the pier to approximately eight (8) feet at its widest point and increased the length of their pier to between 40 and 50 feet. Respondents expanded the pier into its current configuration because Respondent Liston has medical issues that made it difficult for her to enter and exit watercraft without the expansion at the lakeward end of the pier. See testimony of Christen Antrup and Carol Liston, Exhibit F, and Exhibits 11-12.
31. The expanded pier was not the pier approved by the Department in the permit issued in 2012. Respondents believed they could extend the expanded pier into Lake George pursuant to the general licensing requirements under 312 IAC 11-3 and that no written permit from the Department was required. See testimony of Aaron Piering and 312 IAC 11-3.
32. Petitioners believe that the permit granted to Respondent Liston in 2012 controls the pier’s configuration and that Respondents should be required to obtain a written permit from the Department to maintain the pier in its current configuration. See testimony of Christen and Molly Antrup.
33. Petitioners testified that the Respondents’ expanded pier interferes with their riparian rights because it disregards the recommendations regarding maintaining safe navigational space set out in Information Bulletin 56. Petitioners also testified that the Respondents’ pier or watercraft could potentially cause damage to Petitioners’ watercraft or pier.
34. Further, the current pier configuration makes Petitioners’ riparian zone unsafe for swimming and other lake activities like maintaining and repairing watercraft. See testimony of Christen Antrup and Exhibit I.
35. Petitioners maintain a safe navigational zone of at least five (5) feet from the riparian line between their property and the easement. Petitioners allege that Respondent maintains two (2) feet or less of safe navigational area between their current pier and the riparian line between the easement and Petitioners’ property, thus creating unsafe navigational conditions. See testimony of Christen Antrup and Exhibit G.
36. Petitioners also allege that watercraft docked at Respondents’ pier regularly cross into Petitioners’ riparian zone. See testimony of Christen Antrup.
37. Respondents argue they do not moor or allow others to moor watercraft at the pier that often and that no property damage has occurred since the current pier was placed into Lake George. See testimony of Aaron Piering.
Conclusions of Law
38. Lake George in Steuben Count is identified a Public Freshwater Lake in Information Bulletin 61, Listing of Public Freshwater Lakes, Eighth Amendment, DIN 20211020-IR-312210447NRA. See Exhibit J.
39. IC 14-26-2-5, also known as the Lake Preservation Act, provides that the State “has full power and control of all the public freshwater lakes in Indiana … [and] hold and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.” See IC 14-26-2-5(d)(1-2).
40. The Commission has jurisdiction over public freshwater lakes and has the power to make administrative rules to implement relevant sections of the Indiana Code. See IC 14-10-2, 14-15-7-3, 14-26-2-23, and 4-22-2.
41. It is not disputed that Respondents have been granted the right to extend a pier into Lake George from their easement. That Respondents chose to obtain a permit before extending the pier in 2012 does not require them to obtain a permit before changing the pier so long as the pier complies with the general license requirements found in 312 IAC 11-3-1.
42. 312 IAC 11-3-1 grants a general license to place a temporary structure, including a pier, in or on a lake provided the structure meets each of the following criteria:
(1) Be easily removable.
(2) Not infringe on the access of an adjacent landowner to the public freshwater lake.
(3) Not unduly restrict navigation.
(4) Not be unusually wide or long relative to similar structures within the vicinity on the same public freshwater lake.
(5) Not extend more than one hundred fifty (150) feet from the shoreline or water line.
(6) If a pier, not extend over water that is continuously more than six (6) feet deep to a distance of one hundred fifty (150) feet from the shoreline or water line.
(7) Not be a marina.
(8) Not be a group pier.
(9) Be placed by a riparian owner or with the written approval of a riparian owner.
See 312 IAC 11-3-1(b).
43. On its face, Respondents’ pier satisfies items 5-9. The pier does not extend more than 150 feet from the shoreline over the waters of Lake George, is not a marina, is not a group pier, and is placed by Respondents per the rights granted to them by their easement.[4] In addition, based on photographs submitted by both parties and testimony, Respondents’ pier does not appear to be unusually wide or long relative to similar piers maintained by nearby riparian owners, thus satisfying item 4. See Exhibits E, G, 1, 4, and 7-12.
44. This leaves items 1-3 as the remaining items that must be satisfied for Respondents’ pier to qualify for the general license under 312 IAC 11-3-1. As stated in the 2012 permit and in testimony at the administrative hearing, Respondents’ pier is removable and thus satisfies the requirements under item 1 of 11-3-1(b).
45. Item 2’s requirement that a temporary structure not infringe on the access of an adjacent landowner to the lake is at issue in this case. Petitioners maintain that Respondent’s current pier infringes on their rights to access Lake George by creating a dangerous environment for swimming and watercraft maintenance, as well as creating the potential for property damage and preventing Petitioners’ guests from docking at Petitioners’ pier.
46. Item 3 is likewise in controversy as Petitioners claim that Respondents’ pier unduly restricts navigation around Petitioners’ pier. Petitioners testified that they had to walk boats into their pier area to avoid Respondent’s pier and watercraft. Petitioners also cited the difficulty of having guests dock at Petitioners’ pier given the navigation issues allegedly created by Respondents’ current pier configuration.
47. Respondents countered by arguing Petitioners have more shoreline than Respondents and thus could configure their pier and boatlifts in such a way to enable safe swimming for their grandchildren, enable Petitioners to perform watercraft maintenance, and that guests could dock on the north, south, or west side of Petitioners’ pier.
48. Petitioners responded to each counterargument in the negative, without providing many specific details to explain their reasoning, and effectively stated that there was no other way to change or reconfigure Petitioners’ current pier to ensure that both Petitioners and Respondents could lawfully and reasonably enjoy their respective riparian rights.
49. The ALJ does not find Petitioners’ responses to these counterarguments convincing. Given the amount of shoreline owned by Petitioners compared to the shoreline granted for Respondents’ use by the easement, the ALJ finds that it would be entirely possible and reasonable to configure Petitioners’ pier in such a way as to allow both parties to enjoy their respective riparian rights.
50. Respondents’ current pier is within the easement’s riparian zone and, while Respondents’ pier may inconvenience Petitioners’ ability to moor and repair their watercraft as well as to have guests dock on the south side of their pier, the ALJ does not find any evidence in the record suggesting that the current pier substantially or unlawfully infringes on Petitioners’ access to Lake George or unduly restricts navigation around or near Petitioners’ pier.
51. The ALJ finds that items 1-3 of 312 IAC 11-3-1(b) are met, thus fulfilling all the requirements for Respondents’ pier to fall under the general license for placing temporary structures in a public freshwater lake as delineated in 312 IAC 11-3-1. Respondents do not need to obtain a permit to reconfigure or place their pier into Lake George.
52. Although Respondents are not required to obtain a written permit to extend their pier, Respondents’ right to maintain a pier exists only so far out as not to interfere with the rights of the public or with the rights of other riparian owners. Information Bulletin 56, Riparian Zones within Public Freshwater Lakes and Navigable Waters (Third Amendment), DIN 20220209-IR-312220025NRA (IB56).
53. Specifically, IB56 states, in relevant part, “[t]o assist with safe navigation, as well as to preserve the public trust and the rights of neighboring riparian owners, there ideally should be 10 feet of clearance on both sides (for a total of 20 feet) of the dividing line between riparian zones. At a minimum, a total of 10 feet is typically required that is clear of piers and moored boats, although the area may be used for loading and unloading boats and for active recreation.” Id.
54. As Respondents’ easement is only ten feet wide, requiring Respondents to maintain a minimum of ten (10) of clear space on both from both sides of the easement is impossible.
55. The Commission has faced similar dilemmas in previous cases. See N.G. Hatton Trust v. Young & Pfeiffer, 14 CADDNAR 176 (2017); Xanders v. Nixon Trust, 14 CADDNAR 33 (2015); Lawson v. Halliwill, 13 CADDNAR 146 (2013).
56. In Hatton Trust v. Young & Pfeiffer, the Youngs’ property had a total of 61 feet of shoreline and Pfeiffer’s property had a total of 80.7 feet of shoreline. Hatton Trust’s 12.5 feet of shoreline, granted by an easement, rested between the Young and Pfieffer properties. See Hatton Trust v. Young & Pfeiffer at 179.
57. The Commission found that “that the Youngs and Pfeiffer bear a larger burden associated with the maintenance of buffer zones between their piers and moored watercraft and the pier and moored watercraft maintained by the Trust.” Id.
58. The Commission ordered that the Youngs and Pfeiffer must maintain at least three (3) feet of buffer space between their respective riparian zones and the Trust’s zone, and that the Trust may not moor watercraft in such a way that the watercraft would infringe on the Youngs’ riparian zone. Id.
59. The ALJ finds no reason to deviate in substantially from the Commission’s analysis and reasoning in Hatton Trust v. Young & Pfeiffer.
60. Accordingly, as maintaining the ten-foot (10) minimum buffer space discussed in IB56 would impair Respondents’ ability to enjoy the use of their riparian zone, the ALJ finds that the approximate 7.5 feet of buffer space between the parties’ riparian zones (approximately 5.5 feet of clear space from the riparian line on Petitioners’ side and approximately two (2) feet on Respondent’s side of the riparian line) is a sufficient buffer space between the parties’ respective piers.
61. Should Petitioners desire to have a larger buffer space along the dividing riparian line, the ALJ finds that Petitioners, given their greater shoreline frontage, bear the burden of moving their pier and/or watercraft to increase the buffer zone.
62. The Petitioners must maintain no less than 5 feet of space clear from any pier or moored watercraft from the boundary of the easement. At no time may Petitioners leave less than five (5) feet of clear buffer space, including space occupied by moored watercraft, available from the riparian line between Petitioners’ and Respondents’ riparian zones.
63. Respondents must provide at least two (2) feet of buffer space on their side of the dividing riparian line, free of any piers or moored watercraft, except when accessing the lake from their pier. Any reconfigurations or adjustments of Respondents’ pier in the future must comply with this order.
64. At no time may any watercraft moored and/or docked at Respondents’ pier cross into or otherwise infringe on Petitioners’ riparian zone beyond infringement caused by the temporary entry to and exit from Respondents’ riparian zone. Respondents are responsible for adjusting their pier and changing how they moor their watercraft, if necessary, to comply with this order.
1. Respondents’ pier complies with the general license provisions found under 312 IAC 11-3-1. Respondents need not abide by the terms of previously granted permits to build or maintain a pier on Lake George so long as Respondents continue to meet the requirements of 312 IAC 11-3-1 and this order.
2. Petitioners must always maintain at least five (5) feet of clear buffer space from the riparian line between Petitioners’ and Respondents’ riparian zones, including space used by piers and moored watercraft.
3. Respondents must always maintain at least two (2) feet of clear buffer space from the riparian line between Petitioners’ and Respondents’ riparian zones, including space used by piers and moored watercraft.
4. Respondents may not, except for temporary infringement caused by Respondents entering and exiting their riparian zone, moor and/or dock watercraft in such a way that the watercraft cross into and/or otherwise infringe on Petitioner’s riparian zone.
[1] Respondents’ exhibits were initially submitted and labeled with letters as were Petitioners’ exhibits. With the consent of the parties, the Administrative Law Judge opted to designate Respondents’ exhibits with numbers and Petitioners’ exhibits with letters to maintain a clear record.
[2] See Jerry and Karon Grant v. John Rodgers et al., 76D01-509-MI-0322. After a partial order of summary judgment found that Respondents had “a deeded ten-foot wide easement [that burdens Petitioners’ property] over the same ten-foot parcel of property that includes riparian rights,” the case was eventually dismissed on a motion by both parties. This decision was cited by Rodgers v. Liston and DNR, 13 CADDNAR 222 (2014), which affirmed Respondents’ riparian rights granted to them by the ten (10) foot easement over Petitioners’ property.
[3] Testimony was provided regarding how Respondents had changed the pier, thus violating the terms of the pier permit, over the preceding years, but no litigation was initiated because of these changes. It is unclear due to conflicting testimony whether Petitioners objected to these changes in some other fashion, such as notifying Respondents directly of their opposition to the changes.
[4] The depth of Lake George along the shoreline is irrelevant in this matter as Respondents’ pier is well short of the 150-foot length limit provided by items 5 and 6 of 312 IAC 11-3-1(b).